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The EU Trade Directive: Money talks — and buys silence

Martin Woods discusses the implications of silencing corporate whistleblowers when doing so has such wide-ranging negative public impact.

We live in a world where money has become the ultimate goal – where millions worship at the altar of the dollar. Far too often the value of money has taken primacy over the value of human life. In my own professional life, I’ve seen a banker’s appetite for cash outweigh the casualties produced by money laundering. The drive for profit can even outrank the importance of food safety, and the need to increase market share and revenue leads to compromised research, as some drug companies trade health for wealth. The obsession with balancing the books sees standards drop in care homes and hospitals, where all too often the welfare of the elderly and vulnerable is placed in the hands of low cost, untrained, people. The examples worldwide are too numerous to relate and too depressing in their similarity.

The proposed EU Trade Directive[1] appears to codify this creed. It has been proposed by the EU Commission[2] and is supported by Member States. Of course support also comes from the new cult leaders — the executives of big business who have a lot to gain and a lot to lose. The same executives who worship the underlying assumption that greed is a legitimate value and that whistleblowing must be punished, have lobbied for such laws that protect their creed. Aided by their lawyers – who long ago sold their souls – these money mad, power men have sought to silence those who speak out against them. Through the Trade Directive[3], the executives appear to have persuaded European politicians that employees who externally report corporate “information” – some of which could easily point to criminality – should themselves be guilty of a crime. Just when the public needs more information than ever, to hold to account those responsible for corporate conduct in multinationals and banks, or for the activities of governments cooperating across borders, the EU Trade Directive appears to deliver the exact opposite.

As many people know, it was Edmund Burke who said, ‘The only thing necessary for the triumph of evil is for good men to do nothing.’ So what kind of men are these executives who have influenced the EU Parliament to even consider making even more information about a firm’s conduct a trade secret? How can an employee be prohibited from exposing information which could reveal the use of slave or human trafficked labour within a firm’s business plan, which sees reduced cost labour as a way of increasing profits? What of the international oil company that saves money by disposing of dangerous chemical waste off the shores of third world countries, where the oil company has bribed the politicians. How can a law make it more difficult and potentially illegal to report information that could expose these crimes?

Harry Markopolos blew the whistle on the fraudulent Bernard Madoff and his book is called ‘No one would listen.’ More likely, no one wanted to listen. Subsequently, US politicians recognised an information deficiency within the banking and finance industry that substantially contributed to the global financial crisis. In the US, the Dodd Frank Act now mandates rewards for whistleblowers, to encourage people to come forward and report criminal conduct within firms. So why and how can the EU even contemplate the introduction of a law that could criminalize the individual who reports information that the public has a right to know, be it negligent or criminal conduct?[4]

The answer is: ‘Money Talks.’ In fact, money corrupts, compromises, motivates, and intimidates. Money has the power to kill. In the event that this Directive is passed, it has the potential to encourage executives to break the law, to commit crimes in the pursuit of profit because whistleblowers will be silenced. This is precisely the kind of conduct that gave rise to the global financial crisis.

The regulatory penalty notices[5] against global banks involved in criminally deceiving others by artificially fixing currency markets, interest rates and exchange rates, referenced a message sent from one banker to another in which he stated, ‘If you are not cheating you are not trying’. How did an environment develop where a banker believed it was both right and safe to send such a message? The answer is simple, there was no credible deterrent. Bankers believed they were above and immune to the laws applicable to all other members of society and to a substantial extent, they were.

In his defence, the convicted LIBOR trader Tom Hayes stated he was doing his job to the best of his ability, he was doing what his bosses wanted him to do. The financial fixing cases have thrown the bleach of light into a world where intimidation ruled and no one dared to speak out. Now, the executives want to take action, and the EU Trade Directive – which would prevent others from discovering manipulation – is their proposition. Essentially, the executives are not seeking to prevent the next fix — they are seeking to prevent the public from learning about it. The corporate executives behind this Directive want to create a world detached from the world we all live in, where wrongdoing in pursuit of profit is tolerated, even encouraged; an Orwellian world where fraud can be called “miss-selling.”

Thus, what we have learned from the global financial crisis is that governments can be bought, indeed they have been bought. What would Edmund Burke say to the EU politicians who believe it is necessary for them to do something to ensure the triumph of profits over everything else? No law or directive should provide a shield for criminal conduct or even unethical conduct. A law that proposes that only the select few should talk will ensure that ‘no one should talk’ because its real effect is to prevent anyone from listening. Such a proposal is of no value to a democratic society, where it must never be a crime to report a crime.

[1] 9870/14 – Directive of the European Parliament and the Council, on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

[2] Specifically the former president-in-office of the Competitiveness Council, formerly the Greek Vice Minister of Development and Competitiveness Notis Mitarachi

[3] The primary premise of the Directive is to protect legitimate trade secrets which are often vital to the viability of a business, but this has been extended by broad language and a vaguely worded definition of what is a trade secret (incorporating the American definition based in intellectual property) while narrowing to very limited exceptions the type of information – which could easily exclude information related to but not proving wrong-doing – that could be disclosed legitimately. It is not hard to presume such a widening of the notion of a “trade secret” fits well with the type of information which many a corporate executive would like to remain a secret untold to others.

[4] The French conservative MEP Constance Le Grip – whose report on the EU Trade Secret Directive was debated and voted on in June 2015 – has been clear her priorities are to promote and facilitate industry competitiveness and innovation. Those representing interests other than those of industry (i.e. the public’s right to information, good governance and regulation, and the protection of public interest whistleblowers) remain very concerned that the vague and broad language in the Directive will make it much easier for companies to sue anyone who uses internal company information or relies on sources within these companies to inform the public, or the authorities of corporate conduct. This is not only anti-democratic, it threatens the freedom of the press as well as undermines the very limited protections currently available to public interest whistleblowers. EU directives must be transposed into national legislation and it should be noted with great concern that Member States have reserved themselves the right to introduce stricter rules, including introducing criminal penalties for unauthorised disclosures. This is exactly what the French government tried to do in January 2015. See European Corporate Observatory for more information on the history of this EU Directive, the secret lobbying of powerful corporations and the lack of transparency or wider public engagement in its development including: Towards legalised corporate secrecy in the EU? (27 April 2015) http://corporateeurope.org/power-lobbies/2015/04/towards-legalised-corporate-secrecy-eu; and First key MEP vote on EU Trade Secrets Directive – improved language, but problem solved? (16 June 2015) http://corporateeurope.org/power-lobbies/2015/06/first-key-mep-vote-eu-trade-secrets-directive-improved-language-problem-solved

[5] Regulatory findings and conclusions published by major regulators, including the Financial Conduct Authority (FCA) when applying financial penalties in excess of $1 billion against a number of international banks who were engaged in criminally fixing global foreign exchange (FX) benchmark rates. http://www.fca.org.uk/news/fca-fines-five-banks-for-fx-failings

Martin Woods is a whistleblower who stands up for what he believes in. He champions the ‘little guy’ who has the courage to talk out against a government, a bank or a major international company. He seeks to promote the importance of whistleblowers within a democratic society.